Glenn Higginbotham v. Junction City School District, Alvin Kelly, Leon Hines, Randall J. Lyons, Stan Owens, John Sims, and Kevin Hux

Glenn HIGGINBOTHAM v. JUNCTION CITY SCHOOL
DISTRICT, Alvin Kelly, Leon Hines, Randall J.
Lyons, Stan Owens, John Sims, and Kevin Hux

97-749                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 16, 1998


1.   Schools & school districts -- school board decisions -- standard of review.
     -- Regarding the review of school board decisions, it is not
     the appellate court's function to substitute its judgment on
     renewal matters for either that of the circuit court or that
     of the school board; when, however, the issue is whether
     procedures under the Teacher Fair Dismissal Act have been
     strictly complied with, that is clearly a matter for the
     appellate court's review.

2.   Appeal & error -- failure to obtain ruling barred review of issue. --
     Where the trial court specifically found that appellant had
     resigned and expressly declined to rule on the involuntary
     termination procedures provided in Ark. Code Ann. section 6-
     17-1507 (Repl. 1993), appellant's failure to obtain a ruling
     below barred review of the issue on appeal.

3.   Schools & school districts -- evidence supported trial court's conclusion
     that appellant had resigned. -- Where appellant principal testified
     that he resigned, reported in writing that he resigned when
     applying for unemployment benefits, and wrote and signed his
     resignation across a prepared by appellee superintendent;
     where appellee superintendent testified that appellant stated
     that "if you don't want me here, I don't want to be here"; and
     where an assistant elementary principal testified that
     appellant told her he had resigned, the supreme court could
     not say that the trial court's conclusion that appellant had
     resigned was clearly erroneous, and it affirmed on the issue.

4.   Schools & school districts -- Teacher Fair Dismissal Act -- strict
     compliance required. -- Ark. Code Ann. section 6-17-1503 (Repl.
     1993) requires strict compliance with the termination
     procedures set forth in Ark. Code Ann. section 6-17-1507
     (Repl. 1993); the substantial-compliance standard no longer
     controls proceedings under the Teacher Fair Dismissal Act; the
     strict-compliance standard did not, however, aid appellant in
     his argument on appeal as he was not involuntarily terminated
     from his position but, instead, resigned.

5.   Schools & school districts -- resignation -- receipt by superintendent
     satisfies statutory delivery requirement. -- Receipt of a resignation
     by the superintendent satisfies the requirement of delivery
     under Ark. Code Ann. section 6-17-1506 (Repl. 1993) and
     constitutes strict compliance under the Teacher Fair Dismissal
     Act.

6.   Schools & school districts -- superintendent is agent for board --
     appellant's resignation was effective when delivered to superintendent. --
     Arkansas Code Annotated section 6-12-108(b) (1987) defines the
     superintendent of schools "as the executive officer of a
     school district board of directors directing the affairs of
     the school district"; it follows that the superintendent
     serves as the agent for the board; thus, appellant's
     resignation was effective when delivered to appellee
     superintendent in writing.

7.   Schools & school districts -- resignation -- request for does not render
     involuntary. -- A resignation made in order to avoid termination
     proceedings is not necessarily involuntary; similarly, a
     school official's request to a teacher for that teacher's
     resignation, as in this case, does not render a resignation
     involuntary.

8.   Contracts -- duress -- proof required. -- To establish duress, the
     plaintiff must prove that he involuntarily accepted the
     defendant's terms, that there were no alternatives, and that
     the defendant created the circumstances by coercion.

9.   Contracts -- duress -- appellant failed to establish. -- Appellant
     principal failed to establish duress where he voluntarily
     chose to resign rather than be fired and was fully aware of
     his alternatives and where appellee superintendent not only
     verbally gave appellant his alternatives but also presented
     them in writing in a letter on which appellant wrote and
     signed his resignation; appellee superintendent did not use
     wrongful or oppressive conduct; rather, he presented
     appellant's options to him. 

10.  Schools & school districts -- finding that appellant resigned not clearly
     erroneous. -- The supreme court concluded that the trial court's
     finding that appellant resigned was not clearly erroneous, nor
     was appellee school district's vote formally to accept
     appellant's resignation.  

11.  Schools & school districts -- board's decision to accept resignation not
     arbitrary or capricious. -- The supreme court determined that the
     board's decision to accept appellant's resignation was not
     arbitrary, capricious, or discriminatory; a cause for
     termination is arbitrary and capricious if it has no rational
     basis.

12.  Schools & school districts -- Teacher Fair Dismissal Act -- district
     strictly complied with in voting to accept resignation. -- Under the
     facts of the case, appellee district strictly complied with
     the Teacher Fair Dismissal Act when it voted to accept
     appellant's resignation, which was effective upon delivery to
     appellee superintendent.

13.  Schools & school districts -- Teacher Fair Dismissal Act -- presentation
     of options of resignation and involuntary termination not prohibited. --
     Nothing in the Teacher Fair Dismissal Act prohibits a school
     district from presenting the options of resignation or
     involuntary dismissal to a teacher before initiating
     termination procedures.

14.  Schools & school districts -- Teacher Fair Dismissal Act -- departures from
     plain language deferred to legislature. -- The supreme court
     construed the General Assembly's silence as tacit approval of
     its interpretation of the delivery requirement of Ark. Code
     Ann. section 6-17-1506; the court deferred any departures from
     the plain language of the Teacher Fair Dismissal Act to the
     legislature.


     Appeal from Union Circuit Court, Second Division; David F.
Guthrie, Judge; affirmed.
     Pat Hall, for appellant.
     William C. Brazil, for appellees.

     Donald L. Corbin, Justice.
     Appellant Glenn Higginbotham raises two issues against
Appellee Junction City School District (the District), for whom
Appellant was formerly employed as a high school principal, and the
individual Appellees, the District's superintendent and school
board members.  The Union County Circuit Court upheld the
District's decision to refuse Appellant's attempted withdrawal of
his resignation.  Our jurisdiction is pursuant to Ark. Sup. Ct. R.
1-2(a)(17), as this appeal involves a significant public interest
and interpretation of the Teacher Fair Dismissal Act (the Act),
codified at Ark. Code Ann.  6-17-1501 to -1510 (Repl. 1993).  We
affirm. 
     In July 1994, the District hired Appellant as the high school
principal for the 1994-95 school year.  Appellant served as
principal for the District until December 19, 1994, when
Superintendent Alvin Kelly asked him to resign. 
    Kelly had conferenced with Appellant on both September 30,
1994, and October 24, 1994, about Appellant's performance of his
duties.  A memo dated September 30, 1994, from Kelly directed
Appellant to allow Dale Hux, another teacher and dean of students, 
to handle discipline matters in order for Appellant to "supervise
the instructional program, interact with the students and teachers
in order to get to know them and their needs."  The memo further
set forth procedures for written announcements, intercom usage,
lunch detention, and organizing "items of importance."  After
discussing these issues with Appellant, Kelly placed the memo in
Appellant's personnel file.
     Another memo from Kelly, dated October 25, 1994, followed the
October 24, 1994 conference between Kelly and Appellant.  In that
memo, Kelly cited six concerns regarding discipline and gave
suggestions for improvement.  The issues in the October 25, 1994
memo were similar to those in the September 30, 1994 memo.     
      On December 19, 1994, Kelly presented a letter to Appellant,
detailing ten serious concerns about Appellant's "effective and
efficient operation" of the school.  The concerns included
Appellant's calling students "yard apes" over the intercom; failing
to remember names of students and teachers; failing to maintain
necessary materials for operating the school; paddling students
without witnesses; "[e]xcessive cross-examination of teachers on
routine referrals of students to the office"; poor written and oral
communications skills; his monitoring activities, which were viewed
as a "joke" by students; poor leadership; teachers' resentment of
Appellant's evaluations of them; using profanity in the classroom;
and failing to maintain professional rapport with teachers.  The
letter further stated:
     I am hereby requesting that you resign immediately.  If
     you feel a resignation is not in order, I will begin
     termination procedures immediately. 
     Appellant wrote, "As of today, I resign," and signed his name
across the letter.  He then cleaned out his office and turned in
his keys the same day.  Kelly notified the board members of
Appellant's resignation that night by telephone.  Appellant later
alleged that he wrote those words of resignation because he did not
want a termination on his resume.  Appellant also alleged that
Kelly promised to pay him his salary for January if he resigned
immediately.
     On December 20, 1994, Appellant attempted to retract his
resignation through letters written by his attorney to Kelly and
the school's attorney, Bill Prewett.  Appellant reported back to
work on December 22, 1994, although no one else was there because
of the holidays.  The District responded that Appellant's
resignation had already been accepted.  The District further
advised Appellant to request a hearing no later than January 5,
1995.  Additionally, Prewett wrote:
     [T]he Superintendent of Schools will recommend to the
     Board at its meeting on January 10 that Mr. Higginbotham
     be terminated as of December 19, the day of his
     resignation.  The recommendation for termination is based
     upon the reasons set forth in Mr. Kelly's letter of
     December 19 which was delivered to Mr. Higginbotham on
     that date.  A copy of the letter is enclosed for your
     information.
    Appellant requested a hearing, a transcript of the hearing,
names of witnesses expected to testify at the hearing, and exhibits
expected to be presented.  Although the District made the exhibits
and other discovery available for Appellant to copy, Appellant did
not go to Prewett's office to copy them before the hearing.       
      The hearing occurred on February 1, 1995.  Prewett presided
as the hearing officer at the board's request.  The board did not
provide a court reporter, but tape recorded the hearing and had it
transcribed.  Prewett read statements against Higginbotham by
parties who were not present at the hearing.  Superintendent Kelly
testified about the facts leading up to the resignation.  Appellant
and his attorney voluntarily left the hearing before it was over
without making a statement or introducing evidence.  After finding
that Appellant had reported his resignation to the Missouri
Unemployment Commission in writing, the board, upon motion, voted
to formally accept Appellant's resignation. 
     On April 21, 1995, Appellant appealed the board's decision to
the Union County Circuit Court.  Appellant's complaint alleged
claims for violation of the Teacher Fair Dismissal Act, breach of
contract, misrepresentation, outrage, mental distress, and duress. 
In the alternative, Appellant alleged that he was constructively
discharged.  The trial court conducted the hearings on November 1
and November 19, 1996.  Appellant testified that he thought Kelly
was just helping him by issuing the September 30, 1994 and
October 25, 1994 directives because he had walked into a bad
situation in the school, which had employed four principals within
four years.  Appellant further testified that he was not formally
evaluated during his employment with the Junction City Public
Schools; he admitted, however, that he was aware of the concerns
notated in the two prior memos and was also aware of his options
when he wrote and signed his resignation on the December 19, 1994
letter.  During cross-examination, Appellant admitted that he
intended for his resignation to be effective immediately. 
Appellant further admitted that in his application for Missouri
unemployment benefits that he completed on December 20, 1994, he
wrote "because I didn't fulfill job as told and then asked to
resign, resigned."  When questioned about why he left the
February 1, 1995 school board hearing before it was over, Appellant
testified that he left because he had heard enough accusations and
realized he was not going to get anything accomplished and was not
allowed to present his side at what he had referred to as the
"kangaroo court." 
     Superintendent Kelly testified about the problems he discussed
with Appellant in their two 1994 conferences.  Kelly stated that he
did not ask Appellant to sign either the September 30, 1994 memo or
the October 25, 1994 memo, nor was Appellant told he could disagree
or that the memos would be put into his file.  Kelly also stated
that Appellant told him that "if you don't want me here, I don't
want to be here[.]"  Kelly testified that he informed the board
members of Appellant's resignation by telephone the night of
December 19, 1994.  Kelly further testified he would have suspended
Appellant on December 19, 1994, if Appellant had not resigned. 
Kelly admitted that he promised to pay Appellant his January
salary, but stated that he did not do so because Appellant later
tried to withdraw his resignation.     
     Margaret McGaha, assistant elementary principal at Junction
City, testified that Appellant told her over the telephone "that he
thought it was best that he resigned because he knew that Mr.
Kelly, or we were unhappy with his work."  
      High school secretary Diana Dove testified that she often had
to rewrite Appellant's announcements because they did not make any
sense.  Dove further testified that Appellant also kept shorter
hours than the other administrators and had frequent memory
problems.  
     Board members testified that they accepted Appellant's
resignation over the telephone on December 19, 1994, when Kelly
communicated it to them.  Board member Randall Lyons testified that
the board first accepted Appellant's resignation before terminating
him.        
     In a letter opinion dated February 13, 1997, and judgment
filed on March 12, 1997, the trial court concluded that Appellant
properly resigned, that the board accepted the resignation when
delivered to Kelly as the board's agent, and that the board denied
Appellant's attempt to withdraw his resignation at the February 1,
1995 hearing.  The trial court found that there was sufficient
cause for the denial of Appellant's attempted withdrawal of his
resignation and that the board did not act in an arbitrary,
capricious, or discriminatory manner.  The trial court also found
that Appellant was not under duress when he resigned.  The trial
court dismissed all of the claims but the Act violations on the
basis that an appeal under the Act cannot be expanded to include
tort and contract actions.  The trial court did not rule on the
issue of whether the District conducted a proper termination
proceeding due to its finding that Appellant had resigned. 
     Additionally, the trial court found that there was
insufficient evidence to substantiate Appellant's alternative claim
for constructive discharge.  Given that two board members worked at
the school on a part-time basis, the trial court had concerns that
the board was not completely impartial.  The trial court concluded,
however, that there was sufficient evidence to support the board's
actions.  The trial court further found that the record of the
February 1, 1995 hearing was properly preserved and that the
twenty-seven gaps in the transcript did not affect its substance or
overall accuracy.  On April 7, 1997, Appellant filed notice of this
appeal. 
     This court addressed the standard of review for school board
decisions in Hamilton v. Pulaski County Special Sch. Dist., 321
Ark. 261, 900 S.W.2d 205 (1995):
     We recognize that it is not our function to substitute
     our judgment on renewal matters for either that of the
     circuit court or that of the School Board. Allen v.
     Texarkana Public Schools, 303 Ark. 59, 794 S.W.2d 138
     (1990); Green Forest Public Schools v. Herrington, 287
     Ark. 43, 696 S.W.2d 714 (1985).  When the issue before us
     is whether procedures under the Teacher Fair Dismissal
     Act have been strictly complied with, however, that is
     clearly a matter for this court's review. 
Id. at 266, 900 S.W.2d  at 207.  
     Appellant first argues that the trial court erred when it
upheld the District's decision to terminate him.  Specifically,
Appellant alleges violations of the District's policies and section
6-17-1507, which sets forth the involuntary termination procedures
under the Act:
          (a) A teacher may be terminated during the term of
     any contract for any cause which is not arbitrary,
     capricious, or discriminatory.
          (b) The superintendent shall notify the teacher of
     the termination recommendation.

          (c) The notice shall include a simple but complete
     statement of the grounds for the recommendation of
     termination and shall be sent by registered or certified
     mail to the teacher at the teacher's residence address as
     reflected in the teacher's personnel file. 
     The trial court specifically found that Appellant had resigned
and thus expressly declined to make a ruling on the involuntary
termination procedures; hence, this argument fails on its face.  In
its letter opinion dated February 13, 1995, the trial court wrote:
          Last, there is the argument that defendant did not
     comply with the statute and its own policies in
     terminating plaintiff.  This issue cannot be fully
     addressed because of the circumstances of the case. . . .
     Defendant considered plaintiff to have resigned and,
     therefore, did not initiate termination proceedings. 
     Plaintiff was no longer available to receive any
     counseling or paperwork associated with the termination
     process.  The primary purpose of the hearing was to act
     on plaintiff's request to withdraw his resignation. . . .
     No finding is made as to the termination procedure as
     that was not developed due to plaintiff's resignation.
     [Emphasis added.]
     Clearly, the trial court did not rule on the termination
procedures provided in section 6-17-1507 and, in fact, expressly
declined to rule on this issue.  Appellant's failure to obtain a ruling below bars review of this issue on appeal.  Morrison v.
Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997).  

     Furthermore, the facts of this case support the trial court's
conclusion that Appellant resigned.  Appellant testified that he
resigned, reported in writing that he resigned when applying for
unemployment benefits, and wrote and signed his resignation across
the December 19, 1994 letter prepared by Kelly.  Kelly testified
that Appellant stated that he did not want to be there if he was
not wanted.  McGaha testified that Appellant told her he resigned.
Accordingly, we cannot say that the trial court's conclusion that
Appellant resigned was clearly erroneous, and we affirm on this
issue.
     Likewise, we conclude that Appellant's reliance on Act 625 of
1989, now codified at section 6-17-1503, as applied to the
involuntary termination procedures, is misplaced.  That section
provides in relevant part:
     A nonrenewal, termination, suspension, or other
     disciplinary action by a school district shall be void
     unless the school district strictly complies with all
     provisions of this subchapter and the school district's
     applicable personnel policies.  [Emphasis added.]
     Appellant correctly states that this court has consistently
interpreted section 6-17-1503 to require strict compliance with the
termination procedures set forth in section 6-17-1507.  Spainhour
v. Dover Pub. Sch. Dist., 331 Ark. 53, 958 S.W.2d 528 (1998);
Hannon v. Armorel Sch. Dist. #9, 329 Ark. 267, 946 S.W.2d 950
(1997); Lester v. Mount Vernon-Enola Sch. Dist., 323 Ark. 728, 917 S.W.2d 540 (1996); Hamilton, 321 Ark. 261, 900 S.W.2d 205; Western
Grove Sch. Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994). 
The substantial-compliance standard no longer controls proceedings
under the Teacher Fair Dismissal Act.  Spainhour, 331 Ark. 53, 958 S.W.2d 528.  Act 625 is unequivocal.  Id.  This standard of strict
compliance does not, however, aid Appellant in his argument on
appeal, as he was not involuntarily terminated from his position,
but instead, resigned. 
     Appellant next argues that the trial court erred when it
upheld the District's decision to deny his request to withdraw his
resignation.  Specifically, Appellant argues that he retracted his
resignation on December 20, 1994, through his letters to the
District and by reporting back to work on December 22, 1994. 
Appellant further argues that the delivery of his resignation was
not effective because the board did not formally vote to accept it. 
     Section 6-17-1506 provides in relevant part:
          (a) Every contract of employment made between a
     teacher and the board of directors of a school district
     shall be renewed in writing on the same terms and the
     same salary, unless . . . during the period of the
     contract or within ten (10) days after the end of the
     school year, the teacher shall deliver or mail by
     registered mail to the board of directors his or her
     resignation as a teacher, or unless such contract is
     superseded[.]  [Emphasis added.] 
     The trial court based its ruling on this court's
interpretation of section 6-17-1506 in Teague v. Walnut Ridge Sch.,
315 Ark. 424, 868 S.W.2d 56 (1993).  In that case, Teague, who was
employed as a band director, hand-delivered his resignation to the
principal, who in turn delivered it to the superintendent, after
the board had already renewed his contract for the following year. 
The resignation was addressed to the principal, superintendent, and
board of education.  Teague later attempted to withdraw his
resignation on the basis that the school board had not yet accepted
it.  This court rejected Teague's argument and held that the
resignation was effective before the board officially accepted it. 
This court held:
     [S]ection 6-17-1506 does not require the board to take
     any official action in response to a teacher's
     resignation.  Had the legislature intended to require a
     school board to officially accept a teacher's
     resignation, it could have so provided.  It did not.
Id. at 427-28, 868 S.W.2d  at 57-58.  This court ultimately
concluded that substantial compliance was met; thus, the
appellant's resignation was effective.  This court emphasized:
     [O]ur holding is based in part on the facts that
     appellant delivered his resignation to the principal with
     full intent that it make its way to the school board and
     that knowledge of the resignation made its way to the
     school board prior to appellant's attempt to revoke his
     resignation.  
Id. at 428, 868 S.W.2d  at 58.     
     Although the holding in Teague may be distinguished on the
grounds that Teague's resignation was after his contract was
renewed and was decided under the substantial-compliance standard, 
we observe that the General Assembly has not amended the Act to
require a school district's board of directors to formally accept
a teacher's resignation, nor has the Act been amended to require a
school board to allow a teacher to withdraw his or her resignation. 
Teague still controls the issue of delivery, which is effective
upon receipt by the superintendent.  We hold that receipt of a
resignation by the superintendent satisfies the requirement of
delivery under section  6-17-1506 and constitutes strict compliance
under the Act.    
     Moreover, Ark. Code Ann.  6-12-108(b) (1987) defines the
superintendent of schools "as the executive officer of a school
district board of directors directing the affairs of the school
district[.]"  It follows that the superintendent serves as the
agent for the board.  Thus, Appellant's resignation was effective
when delivered to Superintendent Kelly in writing.  Appellant
testified that he was aware that his resignation would make its way
to the school board via Kelly before he attempted to retract it.
     A more complicated issue arises as to whether Appellant's
resignation, which Kelly requested, is equivalent to a firing,
which would necessarily require strict compliance with section 6-
17-1507.  Although Appellant asserts that he resigned under duress,
a resignation made in order to avoid termination proceedings is not
necessarily involuntary.  See generally 78 C.J.S. Schools and
School Districts  253 (1995).  See also Alexander v. Alabama State
Tenure Comm'n, 358 So. 2d 1032 (Ala. Civ. App. 1978).  Similarly,
a school official's request to a teacher for that teacher's
resignation, as Kelly made here to Appellant, does not render a
resignation involuntary.  78 C.J.S. Schools and School Districts
 253.  See also Williams v. Lafayette Parish Sch. Bd., 533 So. 2d 1359 (La. Ct. App. 1988). 
     This court has held that in order to prove duress, the
plaintiff must prove that he involuntarily accepted the defendant's
terms, that there were no alternatives, and that the defendant
created the circumstances by coercion.  Cox v. McLaughlin, 315 Ark.
338, 867 S.W.2d 460 (1993).  Here, Appellant voluntarily chose to
resign rather than be fired and was fully aware of his
alternatives.  Kelly not only gave Appellant his alternatives
verbally, but also presented them in writing in the December 19,
1994 letter, on which Appellant wrote and signed his resignation.
Kelly did not use wrongful or oppressive conduct; rather, he
presented Appellant's options to him. 
     We conclude that the trial court's finding that Appellant
resigned is not clearly erroneous, nor was the District's vote to
formally accept Appellant's resignation.  Testimony by Kelly and
McGaha, support the trial court's finding that Appellant admitted
he resigned.  Additionally, Appellant admitted that he stated in
his application for Missouri unemployment benefits that he
resigned.  Therefore, the board's decision to accept his
resignation was not arbitrary, capricious, or discriminatory.  A
cause for termination is arbitrary and capricious if it has no
rational basis.  Hannon, 329 Ark. 267, 946 S.W.2d 950.  The trial
court correctly concluded that Appellant was not under duress at
the time he resigned because he was aware of his alternatives.  The
statements Appellant made immediately after he tendered his written
resignation to Kelly, in which he said he was not going to fight
him on it, also show that Appellant was aware that Kelly would
deliver the document to the school board who would act on it.  The
individual school board members testified that Kelly contacted them
by telephone on December 19, 1994, and informed them of
Higginbotham's resignation.
     We recognize that strict compliance is now the standard for
determining if Appellant's resignation was proper according to the
language found in section 6-17-1506.  Under the facts as stated in
this case, the District strictly complied with the Teacher Fair
Dismissal Act when it voted to accept Appellant's resignation,
which was effective upon delivery to Kelly.
     Moreover, we are not willing to foreclose a teacher's right to
resign by choice when confronted with the options of resignation
and involuntary termination.  Appellant testified that he was aware
of his rights under the Act and the District's policies.  He stated
that he chose to resign because he did not need a termination on
his record.  Certainly, we believe it benefits the individual
teacher to have the choice of resignation, and we will not deprive
teachers of that choice in future cases.  Nothing in the Act
prohibits a school district from presenting these options to a
teacher before initiating termination procedures.       
     We construe the General Assembly's silence as tacit approval
of our interpretation of section 6-17-1506's delivery requirement
as set forth in Teague, 315 Ark. 424, 868 S.W.2d 56.  See, e.g.,
Ragar v. Brown, 332 Ark. 214, ___ S.W.2d ___ (1998).  We will
therefore defer any departures from the plain language of the Act
to that legislative body.  Small v. Cottrell, 332 Ark. 225, ___
S.W.2d ___ (1998).  
     Affirmed. 
     Newbern, J., not participating.